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2009 DIGILAW 85 (GAU)

J. N. Bawri v. Mohendra Kr. Dudhoria

2009-02-09

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. This appeal preferred under Order 43 Rule 1(w) read with Order 47 Rule 7 and Section 151 of the Code of Civil Procedure, 1908 is directed against the order dated 22.8.2008 passed by the learned Additional District Judge, Shillong in Review Application No. 2(H) 2007 out of order dated 3.12.2007 in FAO No. 2(H) 2006 passed by the said Court. 2. The brief facts necessary for the disposal of this appeal are as follows: The Respondent instituted a Title Suit against one Shyam Sundar Sharma and Shri Ratan Sarkar as well as against the present Appellant being TS Case No. 29(H) 2004. The Respondent also filed an application under Order 39 Rule 1and 2 read with Section 151 Code of Civil Procedure with a prayer for interim injunction to restrain the Appellant from receiving rent from Shyam Sundar Sharma and Ratan Sarkar. In the aforesaid petition, summons were issued to the aforesaid persons including the Appellant asking them to file show cause. The Appellant as party Respondent No. 3 filed show cause reply on 30.3.2005 and the matter was posted for hearing on 20.9.2005 but the Appellant's counsel filed a petition being 372/2005 seeking adjournment on ground of personal difficulties and prayed for two days time for hearing with due intimation to the counsel for the Respondent. The learned Assistant District Judge without considering the aforesaid petition rejected the same and proceeded ex-parte and made the interim injunction order dated 11.3.2005 passed in Misc. Case No. 35(H) 2005 and also order dated 22.12.2004 passed in Misc. Case No. 22(H) 2004 absolute. The Appellant filed an application on 3.12.2005 under Order 9 Rule 13 read with Section 151 Code of Civil Procedure for vacating the aforesaid order dated 20.9.2005. The learned Assistant District Judge, upon hearing the parties rejected the said application dated 3.12.2005 vide his order dated 22.12.2005 on the ground that the impugned order dated 20.9.2005 is not a decree and, as such, the provision of Order 9 Rule 13 Code of Civil Procedure is not attracted. Against this order dated 22.12.2005, the Appellant preferred an appeal under Order 43 Rule 1 read with Section 104 Code of Civil Procedure before the learned District Judge, Shillong. Against this order dated 22.12.2005, the Appellant preferred an appeal under Order 43 Rule 1 read with Section 104 Code of Civil Procedure before the learned District Judge, Shillong. The learned Additional District Judge, Shillong after hearing the parties, came to a conclusion that the appeal may be converted to a revision and consequently in exercise of revisional power of a District Judge set aside the impugned order dated 22.12.2005 passed in Misc. Case No. 35(H) 2005 and directed the learned Assistant District Judge, Shillong to hear the parties on Misc. Case No. 22(H) 2004 and to dispose of the same in accordance with law. The Respondent then filed a review application being No. 2(H) 2007 before the Additional District Judge who, after hearing the parties set aside his own order dated 3.12.2007 passed in FAO No. 2(H) 2007 aforesaid holding that power of revision under Section 115 Code of Civil Procedure lies exclusively with the High Court and not with any sub-ordinate courts including the Court of District Judge or the Additional District Judge. This is how the present Appellant has come before this Court challenging the aforesaid order dated 22.8.2008. 2. Heard Mr. R. Choudhury, learned Counsel for the Appellant. None appears for the Respondent without any step although notice was duly served on him. 3. Mr. R. Choudhury, learned Counsel for the Appellant fairly submits that under Section 115 Code of Civil Procedure, the power of revision can be invoked exclusively by the High Court only and not by any other courts subordinate to it. It is also not disputed by him that the learned Additional District Judge can review his own order if it was passed in exercise of any power not entrusted with him and he has rightly reviewed the same but the learned Additional District Judge did not pass any order giving any relief to the Appellant in respect of the order dated 20.9.2005 by which the learned Assistant District Judge rejected the Appellant's application praying for adjournment for two days only for the ends of justice inspite of persuasion made that the Appellant did not take any adjournment on earlier occasion and the adjournment sought for the first time by the Appellant merited granting of the same. Under such circumstances, the learned Counsel for the Appellant submits that a direction may be issued to the learned trial court, Assistant District Judge, Shillong for affording due opportunity to the Appellant for hearing on the show cause reply dated 29.3.2005 and 24.2.2005 made by him in Misc. Case No. 35(H)/2005 arising out of TS No. 29(H) 2004 and Misc. Case No. 22(H) 2004. 4. The net result of reviewing the order dated 3.12.2007 is that, the learned Additional District Judge has allowed the order dated 22.12.2005 passed in Misc Case No. 35(H) 2005 to sustain and thereby allowed the orders dated 11.3.2005 passed in Misc. Case No. 35(H) 2005 and 22.12.2004 passed in Misc. Case No. 22(H) 2004 to stand which goes against the interest of the present Appellant. This is the root of the grievance of the Appellant inasmuch as he has not been afforded with any opportunity of hearing on the show cause reply filed by him before the learned trial court. Assistant District Judge, Shillong as his prayer for adjournment for two days only was rejected. Mr. R. Choudhury, learned Counsel for the Appellant submits that the learned trial court should have allowed his prayer for adjournment as the Appellant had for the first time asked for only two days' adjournment. As the Respondent-Plaintiff was already granted ad-interim injunction protecting his interest, no hard or prejudice would have been caused to him if the adjournment sought for was granted to him and an opportunity of hearing was granted for the ends of justice. The learned trial Court, without giving any reasonable ground mechanically rejected the prayer for adjournment which is not sustainable under the law. The Appellant has been denied reasonable opportunity of hearing in the matter of injunction and he could have established his point before the learned trial court for rejection of the ad-interim injunction order and thereby caused substantial injustice to him. 5. While disposing the FAO No. 2 (SH) 2006 vide judgment and order dated 3.12.2007, the learned Additional District Judge, Shillong considered the aforesaid matter and made his observation in paragraph 27 as follows: Admittedly, the Appellant was deprived of being heard as regards the application under Order 39 Rule 1 and 2 whereby he was temporarily restrained from collecting rent from the opp-parties 1 and 2 as far the suit property is concerned. It will be in his interest to pursue the matter diligently and ordinarily, a person in such a situation will not seek adjournment. The learned Lower Court has not appreciated this aspect to the matter while dismissing the application seeking adjournment for personal difficulties and that for only two days. The application of discretionary power under the circumstances is therefore not well founded and has resulted in deprivation of the Appellant's right to be heard in the matter. The Learned Assistant District Judge, in my considered opinion ought not to have rejected the application seeking adjourned and passed the order dated 20.9.2005 and to make the ad interim injunction order dated 22.12.2004 and order dated 11.3.2005 absolute. The ruling cited by the Appellant being the case reported in AIR 1992 SC 63 , though not wholly relevant, has some significance at a para 3 of the same, the Supreme Court has restated the principle that interlocutory orders having effect of or tending to be susceptible of an inference of pre-judging some important and delicate issues in main matter. Court will abstain from passing interlocutory order. Simply stated, in the case before the learned lower court, the order making the ad interim injunction absolute has resulted in pre-judging the issues or right of collection of rent as far as the parties are concerned. I have also made my anxious consideration on the aforesaid point and found that the learned Additional District Judge considered the matter in the right direction and perspective. 6. The learned Additional District Judge also observed that wrong citation of provisions of law does not make an application liable to be rejected and any order passed by the court over such wrong quotation when court has jurisdiction under Order 9 Code of Civil Procedure ought to be passed for ends of justice. In this regard also, the learned Additional District Judge in his aforesaid judgment and order made elaborate consideration and there is no ground for taking a different view from the one taken by him. The learned Additional District Judge no doubt exercised the revisional power under Section 115 Code of Civil Procedure by converting the appeal to revision but he made an attempt to render justice to the Appellant by directing the learned Asstt. District Judge, Shillong to hear the parties on the Misc. The learned Additional District Judge no doubt exercised the revisional power under Section 115 Code of Civil Procedure by converting the appeal to revision but he made an attempt to render justice to the Appellant by directing the learned Asstt. District Judge, Shillong to hear the parties on the Misc. Case No. 22(H) 2004 and dispose of the same in accordance with law. This direction issued under the provision of Section 115 Code of Civil Procedure by the learned Additional District Judge is not tenable and the same has been set aside by himself vide judgment and order dated 22.8.2008 passed in Review Application No. 2(H) 2007. 7. What relief could be given to the Appellant and under what provision of law are the questions which are troubling this Court. Section 151 Code of Civil Procedure is the only enabling provision by virtue of which this Court may exercise inherent powers to administer substantial justice to the party aggrieved by an order passed by a subordinate court. In the case, a situation has arisen where the Appellant has been left with no other alternative as there is no specific provision in the statute dealing with the same. This Court is concerned with meeting the ends of justice. The Appellant was denied adjournment sought by his counsel before the learned Additional District Judge. As it was already discussed that the Appellant has been prohibited from collecting rent, it was his primary concern to have the Misc. Case disposed of and get the order passed by the learned Additional District Judge prohibiting him from collecting the rent, vacated as early as possible for his own interest. By allowing two days' adjournment to the Appellant, if it was so granted, could not have caused any prejudice or harm to the Respondent, but the learned Assistant District Judge rejected the said prayer without any cogent and reasonable ground. Thus, the prayer of the Appellant before the learned Assistant District Judge for vacating the ad-intrim injunction order was not considered as required under the law causing substantial injustice to him. Under such circumstances, Court, in my considered view, cannot remain as impotent and helpless without exercising any power under the provision of Code of Civil Procedure. Thus, the prayer of the Appellant before the learned Assistant District Judge for vacating the ad-intrim injunction order was not considered as required under the law causing substantial injustice to him. Under such circumstances, Court, in my considered view, cannot remain as impotent and helpless without exercising any power under the provision of Code of Civil Procedure. I am of the considered view that Court, under such circumstances, should come forward for rendering justice by exercising inherent power under Section 151 of the Code of Civil Procedure as this power is to be exercised by the Court by virtue of its duty to do justice between parties. This has been held so in Manohar Lal Chopra v. Rai Bahadur Rao AIR 1952 SC 527. 8. The learned Additional District Judge in his judgment and order dated 22.8.2008 passed in Review Application No. 2(H) 2007, while setting aside his own judgment and order dated 3.12.2007 passed in FAO No. 2(H) 2007 made no direction to the learned trial court to consider the application filed by the Appellant under Order 9 Rule 13 Code of Civil Procedure read with 151 Code of Civil Procedure for vacating the order dated 20.9.2005. For want of such direction/order, the Appellant has been left with no other alternative and injustice has been done to him. 9. In view of what has been discussed and considered as above, I come to a conclusion that the ends of justice would be met if a direction is issued to the learned Assistant District Judge, Shillong to consider and dispose of the Appellant's application dated 3.10.2005 filed under Order 9 Rule 13 read with Section 151 Code of Civil Procedure after hearing the parties. Accordingly, order dated 22.12.2005 passed by the learned Assistant District Judge, Shillong in Misc. Case No. 35(H) 2005 is set aside. It is directed that the learned Assistant District Judge. Shillong shall hear and dispose of show cause reply of the Appellant in Misc. Case No. 35(SH) 2004 and also the application filed by the Appellant under Order 9 Rule 13 read with Section 151 Code of Civil Procedure aforesaid after giving notice to both the parties preferably within a period of 30 (thirty) days from the date of receipt of the LCR. 10. With the aforesaid directions, this appeal stands disposed of.